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Bar News - March 19, 2010


US District Court Decision Listing - February 2010

* Published

CIVIL RIGHTS: FOURTH AMENDMENT
2/18/10
Holder v. Town of Newton, et al.
Case No. 08-cv-197-JL, Opinion No. 2010 DNH 019*

The defendants moved for summary judgment in a 42 U.S.C. § 1983 case where the plaintiff challenged the constitutionality of a warrantless arrest in his home, followed by overnight detention. The court granted summary judgment. While the constitutionality of the home entry was debatable under existing precedent, the police officers acted pursuant to a New Hampshire statute and were entitled to qualified immunity. As for the overnight detention, the county jail had no constitutional obligation to arrange a bail hearing before morning. 37 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS: SECOND, FOURTEENTH AND FIFTEENTH AMENDMENTS
2/17/10
Teng v. Town of Kensington, et al.
Case No. 09-cv-08-JL, Opinion No. 2010 DNH 027

The defendants moved for summary judgment in a 42 U.S.C. 1983 case where the plaintiff, a Chinese-American, alleged that town officials had denied her the right to vote on account of her race, denied her the right to carry concealed weapons, and failed to prosecute a neighbor who attacked her. The court granted summary judgment. The plaintiff presented no evidence to counter the strong evidence establishing the legitimate and non-discriminatory reasons for the defendants’ actions. 20 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS; STATUTE OF LIMITATIONS

2/23/10
Hecking v. Barger, et al.
Case No. 08-cv-490-JL, Opinion No. 2010 DNH 032

The pro se plaintiff filed an action under 42 U.S.C. § 1983 against three current and former officials of the New Hampshire Department of Labor alleging violations of his due process and equal protection rights after his claim for workers’ compensation benefits was denied. The defendants filed a motion to dismiss, contending, inter alia, that the applicable statute of limitations period had expired. The court granted the defendants’ motion, concluding that even assuming the complaint set forth a constitutional violation remedied by § 1983, the plaintiff’s claim was time-barred. The court also concluded that the "continuing violation" doctrine did not apply because the initial alleged wrongful act occurred well outside the limitations period, and any alleged subsequent injuries were the continuing harmful effects from that act. 18 pages. Judge Joseph N. Laplante.


CONSTITUTIONAL LAW
2/25/10
Constr. Materials Recycling Ass’n Issues & Educ. Fund v. Burack
Case No. 08-cv-376-PB, Opinion No. 2010 DNH 35

Construction Materials Recycling Association and Education Fund and New England Recycling, Inc. alleged in an action against Thomas Burack, Commissioner of the New Hampshire Department of Environmental Services, and Michael Delaney, the New Hampshire Attorney General (collectively "the State"), that three recently-enacted New Hampshire statutes that address the burning of construction and demolition ("C & D") debris violate the Commerce Clause by improperly discriminating against out-of-state C & D debris producers or by excessively burdening interstate commerce. The State moved for summary judgment. The court granted the State’s motion, finding that plaintiffs had failed to present a triable case either that the C & D legislation was discriminatory or that it excessively burdened interstate commerce.
25 pages. Judge Paul Barbadoro.


CONSTITUTIONAL LAW: § 1983 NON-PRISONER
02/17/10
Libertarian Party of New Hampshire, et al. v. Gardner
Case No. 08-cv-3678-JM, Opinion No. 2010 DNH 028P

Plaintiffs brought this § 1983 action challenging New Hampshire’s 2008 general election ballot. Plaintiffs claimed the statutory scheme for placing names of candidates on the ballot unconstitutionally restricted their rights to vote, to freedom of political association and to equal protection of the law, in violation of the First and Fourteenth Amendments. On cross motions for summary judgment, the record showed plaintiffs’ rights were not violated by defendant’s listing of both their presidential and vice presidential nominees and competing Libertarian presidential and vice presidential candidates in the "Other Candidates" column on the general election ballot. The statutory scheme that effected that result is constitutional. Defendant’s motion was granted and plaintiffs’ motion was denied. 30 Pages. Magistrate Judge James Muirhead.


ERISA
2/22/10
Sargent v. Verizon Services Corp.
Case No. 09-cv-310-SM, Opinion No. 2010 DNH 031

Plaintiff sued his former employer seeking unpaid severance benefits he claimed he was owed. Because the court concluded that the employer’s severance program was an ERISA-governed employee welfare benefit plan, and because plaintiff’s claims "relate to" that plan, the court held that plaintiff’s state common law and statutory claims were preempted. 22 pages. Chief Judge Steven J. McAuliffe.


2/18/10
Paula MacLeod v. Reliance Standard Life Insurance Co.
Case No. 09-cv-118-JD, Opinion No. 2010 DNH 029

The plaintiff sued under ERISA to recover long-term disability benefits denied by the defendant. The evidence in the administrative record showed that Reliance Standard relied too heavily on a cursory and flawed peer review, while it gave too little credence to the evidence supporting MacLeod’s claim. Because Reliance Standard both decided whether to award benefits to claimants and paid those benefits, a structural conflict of interest existed. MacLeod failed to show that the structural conflict of interest ripened into an actual conflict of interest. Despite this, the structural conflict, along with the evidence of how Reliance Standard reviewed MacLeod’s claim file, showed that its decision had been arbitrary, capricious, and an abuse of discretion. The court granted MacLeod’s request for benefits, along with pre- and postjudgment interest, but denied her request for attorney’s fees.  30 pages. Judge Joseph A. DiClerico, Jr.


2/9/10
Mark Rossignol v. Liberty Life Assurance Company of Boston
Case No. 09-cv-110-JD, Opinion No. 2010 DNH 021

Mark Rossignol sought long term disability benefits through his employer’s plan provided by Liberty Life Assurance Company. After granting Rossignol benefits for an initial period of twenty four months, Liberty later decided that Rossignol was able to work in certain jobs outside of his own occupation and discontinued his benefits. Rossignol challenged that decision, arguing that his medical records showed that he was disabled from all work and that the peer review used by Liberty was not a reasonable basis for the decision. Rossignol did not raise the issue of a structural conflict of evidence. The court concluded that the medical and vocational evidence in the record sufficiently supported Liberty’s decision to affirm. 16 pages. Judge Joseph A. DiClerico, Jr.


HABEAS CORPUS, § 2254, PROCEDURAL DEFAULT
2/10/10
Randy S. Campney v. Superintendent, Bare Hill Correctional Facility
Case No. 06-cv-297-JD, Opinion No. 2010 DNH 023

The petitioner, proceeding pro se, sought habeas corpus relief under 28 U.S.C. § 2254, raising eight issues in support of his petition. The respondent moved for summary judgment, asserting that the petitioner’s claims were procedurally defaulted because they were not briefed on direct appeal, could have been raised on direct appeal, or were defaulted on post-conviction review. The respondent also addressed the claims on the merits. The court concluded that the respondent’s blanket assertions of procedural default were unavailing and that because the superior court considered some of the issues in the context of a motion for a new trial, those issues were not defaulted. On the merits, the court concluded that the petitioner waived his right to a jury trial, that the record did not support his arguments of discovery abuses, that the New Hampshire Supreme Court’s decision that his arrest was valid did not violate § 2254(d), that his claim of a right to counsel under the IAD lacked record support, and that the record did not support his ineffective assistance of counsel claim. Summary judgment was granted in favor of the respondent. 22 pages. Judge Joseph A. DiClerico, Jr.


LAND USE TORTS, CIVIL PROCEDURE: PLEADING STANDARDS
2/18/10
K-Mart Corporation v. R.K. Hooksett, LLC, et al.
Case No. 09-cv-167-JL, Opinion No. 2010 DNH 030

The plaintiff retail store sued its landlord and other nearby landowners, alleging that their actions had caused flooding that damaged the store’s inventory and fixtures. One of the landowners moved to dismiss the plaintiff’s negligence and trespass claims against it, arguing that they failed to state a plausible entitlement to relief because the defendant’s land was located across the street and downstream from the plaintiff’s property. The court rejected that argument, reasoning that, while the downstream location of the defendant’s property made the plaintiff’s allegations less likely than they might have been had the defendant’s property been located upstream of the plaintiff’s, that situation did not make the claims implausible on their face, particularly in light of the allegation that the defendant’s conduct had caused surface water to "back up" onto the plaintiff’s property. 7 pages. Judge Joseph N. Laplante.


LANDOWNER LIABILITY; DUTY TO WARN; DAMAGES EVIDENCE
2/3/10
Reed v. National Council of the Boy Scouts of America
Case No. 08-cv-45-JL, Opinion No. 2010 DNH 018*

The plaintiff sued the Boy Scouts of America and one of its state councils for serious injuries he suffered while falling off a sled during an outing which took place on the council’s property, but was supervised by adult scout leaders from an unrelated troop. The court granted the council’s motion for summary judgment on the plaintiff’s failure-to-warn claim against it, ruling that (1) the council had no duty to warn of the dangers of sledding because they were obvious to a reasonable person in the plaintiff’s circumstances, even though he was only 11 years old at the time and (2) in the alternative, the council was entitled to immunity under New Hampshire’s recreational use statute because it allowed members of the public to use the property in question without charge. Ruling on the BSA’s motions in limine, the court also concluded that (1) the plaintiff could not recover for medical expenses incurred before he reached the age of majority, because that claim belonged to his mother, not to him, (2) by virtue of New Hampshire’s collateral source rule, the plaintiff’s recovery for post-majority medical expenses was not limited to the amount his insurers paid in satisfaction of his provider’s bills, but to the reasonable value of that care, and (3) the plaintiff could not recover for lost future earnings without admissible evidence discounting those sums to net present value. 30 pages. Judge Joseph N. Laplante.


STATUTE OF LIMITATIONS
2/9/10
Robert McNamara v. City of Nashua
Case No. 08-cv-348-JD, Opinion No. 2010 DNH 020

The plaintiff sued his former employer under 42 U.S.C. § 1983. He also alleged breach of contract, breach of the covenant of good faith and fair dealing, and fraudulent inducement. The defendant moved for summary judgment, which the court granted on the ground that the claims were time-barred. McNamara’s claims concerned events that occurred in 2001, whose allegedly injurious effects should have been comprehended by November, 2001, at the latest. The state statute of limitations applicable to personal injury actions and contract claims, RSA 508:4(I), which provides a three-year statute of limitations, applied to the three state law claims as well as the federal claim. Because the suit was not filed until August, 2008, all four claims were barred.  20 pages. Judge Joseph A. DiClerico, Jr.

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